The Structure of Tort Law

Abstract This chapter explains that the structure of tort law considerations, contrary to a widely held view, provides no reason for a multiple-track systematization of tort law. Indeed, the splitting up of tort law into cause of action groups like delict, strict liability for risk, and sacrifice liability is a product of historical accident. Moreover, the separation of unlawfulness from fault is not convincing so far as unlawfulness, with the dominant doctrinal view, is understood in a conduct-focused way. Such a conception of unlawfulness leads, teleologically, to error because it implies a sanction model of liability. The law of delict is, however, best structured according to a legal-good-oriented model which justifies liability by recourse to considerations which may be decoupled from wrongdoing. The chapter then offers a doctrinal reconstruction of the current tort law, which satisfies the earlier elaborated requirements of normative appropriateness, clear liability rule formulation, and historical linkage. This restatement is restricted to the foundations of tort law, which have been the object of this study.